Court won't reconsider Great Bay group's motion

DOVER — The Merrimack County Superior Court has rejected the request to reconsider the motion filed by the Great Bay Municipal Coalition in November, but the coalition may request an appeal to this.

The coalition communities, comprised of Rochester, Dover, Portsmouth, Newmarket and Exeter, filed a motion in the fall for a reconsideration after a judge's ruling declined to determine if the state Department of Environmental Services was required to follow the New Hampshire Administrative Rulemaking procedures in developing and imposing nutrient criteria for the Great Bay Estuary.

On Tuesday night, Dover City Manager Michael Joyal alerted the public of this decision in an email. The decision was made on Jan. 23.

“The court has effectively indicated that it will not make a determination of whether the State DES violated the Administrative Rulemaking Procedures Act by not submitting the 2009 Nutrient Criteria Documents for rulemaking,” Joyal wrote.

In the objection to the reconsideration, it states the court declined to issue a declaratory ruling and granted the state's motion to dismiss because no order would “conclusively establish the rights between [the State and the Petitioners].”

Earlier this year, the coalition filed suit in Merrimack Country Superior Court, saying DES failed to put the Numeric Nutrient Criteria for the Great Bay Estuary document, commonly known as the “2009 Criteria,” into effect in June 2009, setting the water quality criteria for the nitrogen in the water.

The motion for reconsideration, filed Nov. 16, states, “Petitioners (the Great Bay Municipal Coalition communities) have shown that the 2009 Criteria area de facto rule which threaten to interfere or impair their legal rights and privileges to discharge into the Great Bay Estuary. Since the Court has already determined that the Petitioners have standing, they are entitled to a decision from the Court.”

The coalition said once the document was created, DES declared the Great Bay Estuary had too much nitrogen, currently operating with 15 to 20 milligrams of nitrogen per liter. The coalition claims DES had too stringent of water quality standards, which are being followed by the federal Environmental Protection Agency.

The EPA is suggesting in their permits that the communities must limit the nitrogen in the estuary to 3 milligrams per liter. To update the facilities to lower the amount of nitrogen in the estuary, the coalition communities would have to spend tens of millions of dollars, with upward of $40 million just in Dover alone.

Newmarket and Exeter have received their permits, and the remaining communities are expecting their permits within the next two years.

The court's decision, before the motion for reconsideration was filed, said this was a federal issue and that the EPA is the organization that would make the ultimate decision to harm the coalition and force them to pay for the costly updates to their water treatment facilities.

In the court's notice of decision issued last week, they list a number of reasons why they are declining the reconsideration. They state they are declining to determine whether the 2009 Criteria constituted illegal rulemaking and whether the 2009 Criteria modified the state's water quality standards.

The court said NHDES considers the 2009 Criteria to be “non-binding guidance” used solely to “assist DES staff in determining which parts of the Great Bay estuary are meeting [water quality standards] with respect to nutrients.”

They also state that even if the coalition was to overturn the state's discharge permit on appeal, “the identical conditions and restrictions in the federal NPDES permit would remain enforceable by EPA.”

According to Joyal, “The ruling appears to reaffirm that the court does not believe there is a need to address the question of whether the numeric nutrient criteria developed by DES is or is not a rule under state law.”

When the coalition originally filed for reconsideration, its hope was to determine whether the NHDES nutrient criteria was a state rule and if it was, to require it to be subject to the rulemaking procedure required by state law.

“The issue remains that NHDES has and will continue to issue its own state permits based on the regulatory criteria it created outside of the rulemaking process,” Joyal said. “The DES regulations and state issued permits issued pursuant to those regulations are separate and distinct from the EPA permits issued under federal law. Not only does the EPA issue the Wastewater Treatment Plant permits, but the state DES must also issue its own permit based upon state regulations that are established in accordance with state law.”

Joyal wrote that as a result of the court's decision to decline the motion for reconsideration, “the bypassing of a legally required forum for the public review and legislative oversight of a State agency's regulatory rule making is apparently being allowed to occur.”

He does state, however, that the Coalition communities of Dover, Portsmouth and Rochester are considering making a request for an appeal to the New Hampshire Supreme Court.

Although all five original communities still make up the coalition, Exeter and Newmarket felt it inappropriate to take part in considering the request for an appeal and were also not involved in the federal lawsuit against the EPA filed last month.

“The coalition communities, like many other stakeholders, continue to have united interests in ensuring the protection of Great Bay and the prudent expenditure of public funds based upon sound science to achieve the intended results,” Joyal said. “The need for Newmarket and Exeter to agree to enter into consent orders for their Wastewater Treatment Plant operations does not change that common interest.”